Terminating the Employment Relationship

vii. Reassignment to a Vacant Position Reassignment to a vacant position should only be considered when accommodation within the individual's current position would pose an undue hardship to the employer. If this alternative is considered, the employer should reassign the individual to an equivalent position in terms of pay, status, etc., provided the individual is qualified and the position is vacant within a reasonable amount of time. Indeed, the Ninth Circuit has held, under the Rehabilitation Act, that reassignment of a disabled employee to a vacant position may be required if the pay of the vacant position is equivalent to the old position. 107 Reassignment to a lower graded position is, however, permissible if there are no accommodations that would enable the employee to maintain his/her current position and there are no equivalent vacant positions for which the employee is qualified with or without reasonable accommodation. 108 Under the FEHA, the fact the new position may in actuality be a demotion is acceptable if it is commensurate with the employee’s current abilities and it is the most appropriate existing position available. 109 The employer is not required to create a position as a reasonable accommodation for a disabled employee. If no vacant position exists and there is no other way to reasonably accommodate the disabled employee, that employee will not be otherwise qualified for a position and may be terminated or denied a position. In addition, an employer need not reassign an employee to another job if the employee fails to prove that the reassignment to another job would reasonably accommodate his disability. 110 It should be noted, however, that the Ninth Circuit has ruled that once a new position that would accommodate the employer is created, the employer has the duty to determine whether the employee is qualified for it. 111 Once a suitable position becomes permanent, it must be offered to the employee. 112 viii. Acquisition or Modification of Equipment and Devices Purchase of equipment or modifications to existing equipment may be effective accommodations for people with many types of disabilities. There are various devices that allow individuals to overcome existing barriers to performing functions of a job. Many of these assistive devices and modifications are inexpensive. Sometimes, applicants and employees can suggest effective low cost devices or equipment. Because they have had a great deal of experience in accommodating their own disabilities, they are typically familiar about new and available equipment. 113 ix. Modifying the Examination Process, Labor Agreements or Policies A reasonable accommodation by the employer for a disabled employee may require modifying the examination process, training or employer policies. This requirement seems to impose a new burden upon the employer under the ADA. Under the Rehabilitation Act, courts have held that the obligation to reasonably accommodate does not require an employer to modify its policies. For example, a Court of Appeals has held that an employer was not obligated to place a handicapped postal worker in permanent light duty where it had a policy (a collective bargaining agreement) that such duties were not generally assigned to employees who have served less than five years. 114 In a similar case, another court concluded that the postal service was not required

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 46